121 W. Va. 571 | W. Va. | 1939
Lead Opinion
The claimant, Warnie Burgess, an employee of the Koppers Coal Company, suffered an injury in the course of and resulting from his employment, on September 8, 1933. He applied for compensation and received an award on a thirty per cent permanent partial disability basis, which was later increased to fifty per cent, the last payment under which was made on July 16, 1937. On April 2, 1938, claimant filed his petition asking that he be given a total and permanent disability rating. On July 19, 1938, the previous rating was continued but the percentage of
The employer defends the action of the Appeal Board in directing payments under its award to begin on June 24, 1939; but by way of cross-assignment of error says the Appeal Board did not have authority to re-rate the disability resulting from the original injury, without evidence of substantial progression or aggravation thereof, and it is contended that no such evidence appears in the record.
Considering first the cross-assignment of error, we must bear in mind the repeated holdings of this court that the compensation statute must be given a liberal interpretation in order that its beneficient purposes may not fail through a strict construction of its terms. McVey v. C. & P. Tel. Co., 103 W. Va. 519, 138 S. E. 97; Caldwell v. Compensation Com’r., 106 W. Va. 14, 144 S. E. 568; Kincannon v. Compensation Com’r., 107 W. Va. 533, 149 S. E. 665; Bonner v. Compensation Com’r., 110 W. Va. 38, 156 S. E. 847; Vandall v. Compensation Com’r., 110 W. Va. 61, 62, 158 S. E. 499; Martin v. Compensation Com’r., 111 W. Va. 420, 162 S. E. 486. Also, the rule no less well established that the Appeal Board is a fact-finding tribunal and that its findings will not be set aside by this court unless clearly wrong. Rasmus v. Workmen’s Compensation Ap
The remaining question is whether the Appeal Board had the right to provide that the payments its ruling called for should begin with the date of its order instead of the date when payment on the last preceding award had ceased. The claimant relies on Code, 23-4-18, which provides:
“In all cases where compensation is awarded or increased, the amount thereof shall be calculated and paid from date of disability.”
contending, as we understand, that his disability must be held to have existed at the time payments on his former award ceased. We do not think this necessarily follows. It is true one physician examined the claimant on July 21, 1937, shortly after the expiration of the former award, and suggested permanent total disability on the ground that he was not able to do manual labor; but his petition for compensation based on his present claim was not filed until April 4, 1938, some eight months later. He
It is not amiss to observe that, in practice, increased awards are made on the basis of present disability, and not that existing at date of injury, although, as a general rule, payments are made to begin at the date when payments on a previous award cease. In awards short of those based on total permanent disability the time when payments begin is not of controlling importance, because the limited number of payments will ultimately be made, and the claimant cannot be seriously prejudiced. In cases of total permanent disability the time feature would be important, and the claimant would be entitled to have payments begin at the expiration of his previous award, unless, during the period when his application for a new award is pending, he has been employed in such a way as, could the employment be said to be permanent, he would not be entitled to further compensation. In such a case we see no prejudice to the claimant in making payments begin at the date of the award. We think the case before us comes under this classification. It is the election which the claimant makes not to take the risk as to the permanency of his employment which entitles him to the additional award, and when he moves from one status to another, he cannot justly complain if payment under
It clearly appears from the record that beginning October 16, 1936, and continuing through all of the time the extent of the claimant’s disability was being investigated, he was employed as a sub-station operator and received wages in excess of the sum he would have received as compensation. But it is contended that this should have no bearing on the right of the claimant to receive compensation from and after July 16, 1937, the date when his former award expired. In support of this claim we are cited numerous cases to the effect that a recipient of compensation may engage in work and receive wages therefor without affecting his right to compensation for injuries sustained in a previous employment. This is the express holding of Gay Coal & Coke Co. v. Compensation Com’r., 121 W. Va. 200, 2 S. E. (2d) 265, and in that case there is cited Johnson v. Compensation Com’r., 109 W. Va. 316, 154 S. E. 766, and McDaniel v. Appeal Board, 118 W. Va. 596, 191 S. E. 362, as well as many cases from other jurisdictions, all supporting this theory of compensation law. This holding we regard as well established. The fact that a man may be able to do work of a certain character does not mean that he is able to do the work in which a person in his normal situation in life would ordinarily find employment. In the case before us, the claimant’s work in the sub-station required him merely to turn an electric switch, a type of work not calling for manual labor, in the ordinary meaning of the term, and we cannot say that he should, on that account, be deprived of compensation, because the work he did is not such as would ordinarily be open to him, and because of the fact that work of this character must necessarily be limited to comparatively few persons. This reasoning finds support in our cases decided on this question. McDaniel v. Appeal Board, supra.
As matters stood in July, 1937, the applicant’s award of compensation had expired; he was employed at wages in excess of the compensation he had been receiving or would receive should the same be continued; had he failed to apply for further compensation within one year he would have been barred; presumably not wishing to take the risk that his employment would not be permanent, he on April 2, 1938, asked for further compensation,
We have noted the rule that the compensation statute should be liberally construed. This has its basis in the effort to carry out the benign purposes of our compensation law. The fund is built up and protected to the end that those unfortunate enough to be compelled to resort thereto, may not be denied relief because of lack of funds, and in this connection the future should not be disregarded. The same rule which calls for liberal application of the law, when applied to those entitled to its benefits, justifies, in our opinion, a liberal application of the law to the end that the fund may not be depleted by payments to those who, under circumstances such as are before us, would not appear to be equitably entitled thereto.
The order of the Compensation Appeal Board is affirmed.
Affirmed.
Dissenting Opinion
dissenting:
This case involves only the question of when the compensation of the claimant under his total permanent disability award should begin to run. In my opinion, the majority finding vests in the Compensation Commissioner
“* * * In all cases where compensation is awarded or increased, the. amount thereof shall be calculated and paid from the date of disability. * * *” (Code, 23-4-18, amended by Acts 1935, ch. 78).
It strikes me as quite apparent that the opinion of the Court does not follow this plain statutory precept, but instead establishes a way by which it can be avoided. If the award of compensation is based upon the existence of a disability caused by claimant’s injury, then there can be no gap in his compensable period. It is then a statutory award and the Commissioner’s duties are ministerial. I do not believe the statute contemplates that as the result of one injury, more than one disability can develop. That it can is an inescapable premise of the majority conclusion.
To vest a ministerial officer with the discretion that the majority opinion rests upon the Commissioner, to my mind, is inconsistent with this Court’s original jurisdiction to hear compensation cases as mandamus proceedings, which rests upon regarding the duties of the Compensation Commissioner as being ministerial. Where there is a judicial discretion involved, as there would be if the Commissioner’s judgment controlled the time of making an award of compensation effective, I do not see how in a proceeding likened to mandamus, this Court could review the Commissioner’s finding. '